1810-11. BOULTBEE T. STUBBS. : could immediately recover against the principal Debtor. That clearly could not be the Intention of these Parties : otherwise this Contract for additional Security can mean nothing or rather would have the Effect of disabling the Debtor to pay the Debt; the Discharge of which is his professed Object; devesting out of him the Estate, which forms the Fund for Payment, without attaining that Object. Upon the Defendant's Construction of these Words he might the Day after this Transaction have arrested the principal Debtor upon the Bond. The Security is not in Substance prejudiced by this Delay of Payment. At least the Plaintiff ought not to be called upon, until the Principal has made Default in Payment of the Instal ments. Burke's Case is merely that of Two Sureties: One discharged by the Creditor, proceeding against the other; who called upon the Court to consider him as discharged by the Act of the Creditor; and he was discharged upon the Principle of Nesbit v. Smith (a), and Rees v. Berrington (b). In Wright v. Simpson (c) your Lordship lays down the Principle, that the Benefit, for which the Debtor contracts on his own Account, he contracts for on Account of the Surety; and the Creditor is bound to the same Extent as to both. Wherever therefore the Principal gets Time, the Surety is entitled to the Benefit of it: else he is precluded from the common Equity of compelling the Principal to discharge him by paying the Debt. Another general Principle is, that the Surety is entitled to the Benefit of all Transactions between the Creditor and the principal Debtor. The Creditor is not bound to proceed; but may remain passive: if however he does proceed, and afterwards gives Time, the Surety (a) 2 Bro. C. C. 579. (c) Ante, Vol. VI. 714. See 734. must must have the Benefit of that; as your Lordship states (a) in Wright v. Simpson. The Relief of the Surety is also supported by English v. Darley (b). Sir Samuel Romilly, and Mr. Wingfield, for the De fendant. All these Cases of Relief to the Surety have gone upon this; that Time was given to the Principal. In this Case Judgment being confessed under the Warrant of Attorney expressly without Prejudice to any Security the Creditor holds, the Surety sustains no Injury whatsoever. He might have called upon the Creditor to enforce his Demand against the principal Debtor equally after this Judgment confessed, as before. In all the Cases referred to the Creditor had put that out of his Power; and upon that alone the Surety was discharged. This Transaction, by which the Creditor obtains Part-payment, and a Mortgage, is highly advantageous to the Surety; relieving him in a very considerable Degree from his Obligation; leaving all the Remedies he could have called upon the Creditor to enforce against the principal Debtor still subsisting; and under these Circumstances, the Surety, sustaining no Delay or Injury, and having all the Benefit of this Transaction, claims in a Court of Equity to be wholly discharged upon the strict, technical, Rule, that Time, given to the Principal without Consent of the Surety, discharges the Surety. Your Lordship's Words in Wright v. Simpson are not to be understood, that, having brought an Action, the Plaintiff must proceed with the utmost Rigour; referring to the Decisions, establishing the Principles, that have been stated. In Rees v. Berrington this (a) Ante, Vol. VI. 734. (b) 2 Bos. & Pul. 61. 1810-11. BOULTBEE 0. STUBBS. 1810-11. BOULTBEE STUBBS. Court would have injoined the Creditor, proceeding upon the Bond, though at the Instance of the Surety. Is that the Case here? Would this Court have restrained a Proceeding upon the Bond against the express Contract, reserving the Right to proceed upon it notwithstanding the new Security; and no Time being given; by which the Surety could be affected either in Equity or at Law? The Lord CHANCELLOR. This Question is now presented to me in quite a new Point of View. Upon the former Occasion it was argued, as if the immediate Right of Action against Thomas Boulthee, the principal Debtor, was gone. It is clear, that, if he might have been forthwith sued, and Execution had against him, as the Fruit of that Suit, the Surety is not injured; and on the other Hand, that, in general, if Time is given to the Principal, the Surety is discharged. The Objection to the Reserve of Remedy against the Surety consists in the Interest the Principal has; that the Surety shall not be applied to. It is said, that the Principal cannot by Contract deprive himself of the Benefit, derived from that Forbearance; and there certainly have been Decisions, that, if Time is given to the Principal, reserving the Right to go against the Surety, the Principal cannot raise the Objection upon his Right to Time as against the Surety; as there is the Contract of the Principal, arising out of the Contract for Reserve against the Surety, that the latter, if the Creditor goes against him shall not be deprived of the Benefit of the Contract as against the Principal. That was Burke's Case; as to which I will look at the Note I have. If the Contract for Reserve against the Surety prevents his Remedy against the Principal, that Contract for Reserve will not do: but the Question is, whether it does in Law deprive the Surety of that Benefit. It may in many Cases be a very rational Provision, that the Principal shall have Time, provided provided he can have it without Prejudice to the Benefit of the Remedy against the Surety; which, though worth nothing at present, may in a Year's Time be very valuable; and the Creditor may very reasonably mean to secure the Benefit of that Contingency. 1810-11. BOULTBEE 0. STUBBS. The Lord CHANCELLOR granted the Injunction. 1811, April 11. SIR DASHWOOD v. PEYTON. 1811, April 1, 2. May 2, 3.6.10. IR Thomas Peyton by his Will, dated the 14th of Ja- No Devise by nuary, 1765, devised real Estates, and also the Ad- Implication yowson of Doddington, to the Use of his Nephew Henry from the mere Dashwood, afterwards Sir Henry Peyton, for Life, with Recital of an Remainder to his first and other Sons in Tail Male, to the Plaintiff James Dashwood and his first and other Sons and several Remainders over; with the following Direc tion : "I do hereby order, will and direct, if the Living of Doddington in the Isle of Ely in the said County of Cambridge shall happen to become vacant by the Death or Resignation of the present Incumbent or otherwise "while my said Nephew Henry Dashwood shall be in erroneous Conception of Right. As to an implied Election, the Will imposing an express Election in Faor of another Person, Quare. lidity of a Bond of Resignation of a Living in Favor of a particular Person and not to accept a Bishopric, (the latter not directed by the Will), and whether to be considered upon the Principle of Marriage Brocage Bonds, as against public Policy, or as a corrupt Transaction, with reference to which the Court would not act, Quære. "Possession 1811. ~ DASHWOOD 0. PEYTON. "Possession of the Estates hereinbefore by me given or "limited to him as aforesaid, then and in such Case he "the said Henry Dashwood shall and do present his said "Brother James Dashwood to the said Living and Rectory of Doddington." At the Death of Sir Thomas Peyton the Living of Doddington was full: Dr. Proby, afterwards Dean of Litchfield, being the Incumbent. Sir Henry Peyton, being seised for his Life of the devised Estates and the Advowson, and being also seised of the other Estates in the County of Suffolk, which he had Power to dispose of, by his Will, dated the 10th of January, 1789, reciting, that he was seised or entitled for Life under the Will of his Uncle Sir Thomas Peyton among other Estates of or to the Advowson of the Rectory of Doddington, with Remainder to his eldest Son Henry in Tail Male, with divers Remainders over," subject to a Direction in said "Will, that my said Brother James Dashwood should be "presented to said Rectory, when it shall next become "vacant, which it is my Wish may be complied with, "now I do hereby declare it to be my Desire and earnest "Wish, that in case upon the Vacancy of the said Living "by the Death or Promotion or Resignation or other "Act of the present Incumbent the said James Dash"wood shall not be then living, or shall decline to accept " of the said Presentation, or in case the said Rectory "shall again become vacant after the said James Dash "wood shall have been presented to and accepted said "Presentation, them and in either of such Events my said "Son Algernon Peyton may be presented to said Rec"tory or Living of Doddington as soon as he shall be "qualified and willing to accept of said Presentation; and "that in order thereto in case at any Time after such Vacancy as is last hereinbefore mentioned and before my said Son Algernon shall be qualified and willing to " accept |